FOIA Reading Room

The Cornucopia Institute has submitted dozens of Freedom of Information Act (FOIA) requests over the years in an effort to shine a light on the inner workings of the National Organic Program. Over and over we have seen the same response from the USDA: frequent delays far beyond what is permitted by federal law, overuse of legal FOIA exemptions so as to hide key decision-making details, and a multiplicity of other tricks to deflect our demands for transparency.

We have managed to extract documents in a number of instances, often after having to sue the USDA in federal court for delays (sometimes several years) in document releases. We present the FOIA releases here, along with our assessment and background information on each request.

The dramatic increases in imported organic grains have given rise to concerns about the potential for fraudulent organic products to enter the United States. This request to Customs and Border Patrol (CBP) seeks information related to imports of organic wheat, organic corn, and organic soybeans into the United States for the year 2016. The request specifically seeks documents related to the international supply chain histories, which preceded the entry of the products into the U.S.

A Turkish organic certifier, the Ecological Farming Control Organization (ETKO), lost its accreditation in the European Union and Canada for failure to adhere to applicable certification requirements. The National Organic Program (NOP) first proposed suspension, but later due to an appeal and intervention by legal counsel, maintained its status as a certifier under the terms of a settlement agreement reached with the former director of the NOP, Miles McEvoy. ETKO agreed to take corrective action and face additional scrutiny based on non-compliances identified by the USDA. This request seeks information concerning ETKO’s continued accreditation under the NOP, including records related to any and all alleged violations of the Organic Foods Production Act of 1990.

What we found: The USDA has sent six batches of documents between June and October 2017 with more to come. We are in the process of reviewing these documents.

Correction: The above explanation of our FOIA request regarding ETKO originally included an incomplete statement about ETKO’s agreement with the USDA. The USDA issued a “Notice of Proposed Suspension” to ETKO, and upon ETKO entering into a settlement agreement with the USDA, ETKO maintained, not “regained,” its accreditation in the U.S.

As a follow-up to the NOSB appointments request from 2016, we requested records from NOP officials regarding the decision making process used for the appointments of Ashley Swaffer and Carmela Beck to the NOSB. Swaffer and Beck are agri-business executives who currently hold seats that are set aside for farmers.

What we found: The USDA has sent three original batches of documents to date, and a fourth that revises one of the original three. We are still reviewing these documents.

The National Organic Program has allowed the certification of hydroponic operations despite the fact that the Organic Foods Production Act (OFPA), the law that governs organics in the United States, clearly states that nurturing the fertility of the soil is an integral part of organic management. In November 2016 Cornucopia filed a legal complaint against the certification of these operations. We requested all records between the NOP and certifiers regarding container growing (hydroponic or in any other soilless medium) since 2000. We subsequently shortened the range to 2010-2016 in order to speed up the record collection process

What we found: The USDA released 477 pages of records in four separate batches. Cornucopia found inquiries from accredited certifiers regarding the confusion surrounding the legality of the certification of hydroponic and/or aquaponic production systems to USDA NOP standards. While National Organic Standards Board (NOSB) recommendations stated that hydroponic operations are not eligible for certification to NOP standards, Miles McEvoy confirmed that the NOP agreed with this recommendation when speaking publicly. However, no formal action was taken on the NOSB recommendation, and it was clear, from the documents, that a number of accredited certifiers went ahead and granted certification to hydroponic and aquaponic operations based on feedback from the NOP that it was okay.

Given the NOSB recommendation and Miles’ public personal backing of that recommendation, some accredited certifiers have turned away clients, while other accredited-certifiers went ahead and collected enhanced revenues by certifying these operations, based on non-official feedback from Miles/NOP, creating an unfair certification/business environment.

The NOSB is a panel made up of 15 volunteers chosen so as to represent a cross-section of stakeholders in the organic community. Its role is to advise the USDA on organic policy. Unfortunately, the USDA has undermined the independence of the NOSB by stacking it with corporate agribusiness executives and insiders instead of independent farmers, processors, and scientists, among others. We requested all applications submitted for the four positions on the NOSB that came open in 2016 in order to compare the qualifications of those that were selected to those that were passed over and to reintroduce a level of transparency into this process that existed in the past. Our intent has also been to release the names of NOSB applicants prior to their selection to let the full organic community provide feedback to the USDA and help them select the best and brightest for this important regulatory board. The USDA has, illegally, impeded us in this process (our lawsuit requesting documents related to the 2015 applicants was only released due to our filing a lawsuit — and not until after the appointment process was completed).

What we found: The USDA released 671 pages of records after we filed suit. These are currently under review for their completeness.

We requested all records of communications between the Agricultural Marketing Service’s FOIA office and the certified dairies in Texas and New Mexico that were the subject of one of our earlier FOIA requests (NOP visits to TX and NM dairies – 2013-AMS-01201-F). See below for background on the case.

The records that the USDA produced for the earlier FOIA were heavily redacted using an exemption in the FOIA law that protects “confidential business information” (CBI). To identify CBI, the government allows private entities to weigh in on what they think should be disclosed and what should be protected. In our view, far too much information is protected, way beyond what is necessary to rightfully protect true trade secrets or commercial/financial information. Very little of what happens on farms, in terms of technology, genetics, management, etc. is unique and protectable. This request was designed to bring the process of identifying CBI to light.

What we found: Documents were sent in August 2016 and February 2017, and we are in the process of reviewing them. This FOIA is currently in litigation.

When the NOSB considers whether materials should be allowed in organics, it bases its decisions on “independent and impartial” scientific reviews. Instead of following the Congressional mandate, and allowing the NOSB to choose scientists that it respects to do this work, the NOP has instead chosen these “scientists”. The focus of these reports are on accessing the material’s impact on human health and the environment. The Technical Review for the re-listing of carrageenan in 2015 was conducted by the Organic Materials Review Institute (OMRI). We had concerns about both the conclusions reached in the TR and the qualifications of the reviewer(s). Our request covered the proposal submitted by OMRI when bidding for the contract to conduct the review, the qualifications of the reviewer, and documents that might show a conflict of interest on the part of OMRI.

What we found: Two individuals conducted the review. Both held nothing higher than a Bachelor’s Degree (in the past, generally, scientists with PhD’s conducted these reviews). OMRI indicated in their application that qualified staff would be conducting reviews. We have resubmitted the FOIA for additional information to assess conflict of interests.

Redland Dairy was one of 14 industrial-scale operations that we submitted complaints against in late 2014 (see “organic” factory farm investigation for details). The USDA dismissed all 14 complaints without even conducting an investigation despite photographic evidence of Redland and others violating organic rules regarding pasture access. We received word from a journalist that Redland had had its certificate suspended by its certifier, the Texas Department of Agriculture, prior to us filing our complaint (it was still listed as a certified operation on the NOP website). This request sought the details of the investigation that led to the suspension.

What we found: In September 2016, after having filed suit in federal court, the USDA released 167 pages of documents. They released an additional eight pages in March 2017, another 75 in May 2017, and 18 more in August 2017. We are currently reviewing these documents. We are currently reviewing these documents.

In 2009, Miles McEvoy was appointed head of the NOP, the office within the USDA that manages the organic system in the United States. Cornucopia publicly expressed great enthusiasm about his appointment, given his familiarity with organics from his time as the head of Washington State’s organic program. However over time, we have grown increasingly disappointed with the program’s management, its moves to consolidate and take power from the NOSB, its favors gifted to corporate interests, and a general lack of enforcement of organic regulations for factory farm scofflaws. As public criticism of his performance became more prominent, numerous individuals, representing companies and organizations regulated by Mr. McEvoy’s agency, told us he had personally solicited them for letters of support to be sent to his supervisors at the USDA. We think this constitutes an ethics problem and illustrates a significant conflict of interest. With this FOIA, Cornucopia requested letters, emails and records of phone calls concerning McEvoy’s job performance and his evaluation as the head of the NOP.

What we found: In January 2016 we received records that had substantial redactions, most citing the FOIA exemption for anything that would invade someone’s personal privacy (this included a number of letters from certifiers and other organizations in the organic industry which Mr. McEvoy directly or indirectly regulates). Typically this exemption is used to hide personal details, addresses, or phone numbers, however the USDA uses it, improperly in our view, to redact entire paragraphs or even pages. Our appeal did not garner a response from the USDA and this FOIA is currently in litigation.

As part of our ongoing oversight of the NOP’s enforcement of the organic regulations, we requested all enforcement actions, investigative files, and complaints that did not warrant an investigation for October 1, 2014 to December 31, 2015.

What we found: The NOP sent over 500 pages of documents in three batches in the first half of 2017. We are currently reviewing these documents.

During the tenure of Deputy Administrator McEvoy, we have seen a steady decline in the independence of the NOSB, from a board that is supposed to stand apart and advise the USDA to one that is largely controlled by the NOP. In an effort to shine a light on the relationship, and possible behind the scenes collusion, between McEvoy and Jean Richardson, who was NOSB chair at the time of this request, we sought all correspondence between them.

What we found: The communications uncovered by this request showed an inappropriately cozy relationship between the NOSB chair and the head of the NOP, as well as attempts to mask the voting record of the NOSB. NOSB Chair Richardson specifically referenced Cornucopia’s NOSB voting scorecard and discussed ways of masking the votes of individual members so as to thwart our efforts at holding members accountable (asking if voice votes would be legal rather than roll call votes — which they then implemented at the next meeting). There were what appear to be improper redactions, primarily using the exemption for preserving personal privacy. We appealed these redactions, and, after no response was forthcoming, filed suit. The case has yet to be resolved.

As part of our ongoing investigation into the management of the NOP, we requested the NOP’s budget for the previous two fiscal years. Our primary concern is that the NOP has failed to expend adequate resources on enforcing federal organic regulations while at the same time substantially increasing the budget and staffing for public relations functions. This FOIA is an attempt to determine if the NOP has the resources to meet its enforcement responsibilities, and/or if it chooses to spend its resources on other activities.

What we found: Though we requested the most detailed version of the NOP’s budget, the USDA sent a very rudimentary table which outlined their expenditures in a way that did not allow us to answer questions regarding enforcement. We appealed and eventually filed suit after our appeal was ignored.

As in 2016, we requested all materials submitted by applicants for the openings on the NOSB.

What we found: The USDA delayed the release of records for many months until after they had made the appointments. Ultimately, we filed a lawsuit to compel the USDA to release these public records. Responding to the lawsuit, the USDA provided the NOSB applications, yet these proved incomplete. In fact, application materials for four of the six appointees were completely missing. The full record of applicants was finally delivered in August of 2016 – 14 months after the FOIA filing. In total, 52 individuals applied for the six opens seats on the NOSB. The two applicants for the vacant certifier seat generated the most discussion with dozens of letter of support from individuals and organizations (from those aware of their application). A total of 21 farmers, many with very accomplished resumes, applied for the two vacant farmer seats. Rather than appointing agribusiness executives, as they had done in the past – and for which Cornucopia is suing the USDA, the agency actually appointed farmers to the farmer positions (although it appears that one of the farmers has only a year or two of organic experience and works a token 1.5 acres of certified land — a gross insult to the working farmers of this country whose livelihoods depend on the NOSB’s decisions). As noted above, our initial intent for the filing of this FOIA was to release the names of NOSB applicants prior to any selection by the USDA enabling the full organic community provide feedback encouraging selection of the best and brightest for this important regulatory board.

Anyone can submit a complaint to the NOP regarding suspected violations of the organic rules and regulations. Often these complaints are about labeling concerns, as those can be apparent just based on a products packaging materials. There are strict rules about how the word “organic” and certifier logos can appear on packaging. For example, the phrase “100% certified organic” cannot appear in any context on package that is not actually certified as such. Issues can also arise when an operation is a certified organic handler, but the products themselves have not been certified.

The NOP can pursue any violations by requesting a formal administrative proceeding and filing a complaint alleging the above referenced violations. If filed, the case would be heard and decided by an administrative law judge authorized to assess civil penalties of up to $11,000 per violation. Also in the NOP’s toolbox for violators is the ability to suspend their ability to get certified and sell their products under the organic label. This may be considered a harsh penalty for companies who feel they rely on the “organic” term to generate business (as many businesses do). The NOP can also offer a settlement to violators which usually constitutes a fixed monetary penalty. This settlement may come with conditions that are negotiated between the parties.

What we found: Instead of seeking a larger reward, the NOP sought settlements for violations to the organic rules and regulations. Sometimes these violations were ongoing and had not been corrected at the time of the settlement. In all of the reviewed cases the settlement was for less than $11,000 per violation and restrictions on a violator’s ability to get certified and sell their products as organic was avoided even where there were ongoing violations.

Organic Avenue was accused of misrepresenting its juice and cleanse products as organic and sent a cease and desist letter in 2012, subsequent to responding to an outside complaint (investigation was not initiated by the USDA or an accredited certifiers, in this case Oregon Tilth). Organic Avenue was found to be in violation of organic rules and regulations and the NOP offered them a settlement of $8,000, which they accepted.

Green Hope (dba Rosewood), a producer of organic tofu and soy products, was found to be using substances prohibited in organic handling during a review. After appealing a proposed order of revocation that would have prevented the company from certifying their products for 5 years, the NOP offered significantly reduced six month suspension. When the company asked for a civil penalty instead of a suspension of their organic status, the NOP agreed to a settlement of $11,000 in 2013.

SereniGy Global, a tea and supplement business, was found to be in violation of the organic labeling standards and presenting confusion in the organic label. SereniGy was offered a settlement of $12,000, which the NOP then reduced to $4,000 despite long-running and ongoing violations.

TheSixty, a previously certified farmer who was suspended due to failing to conduct a search for organic seeds, was charged with selling non-certified corn as organic (that would have otherwise met the requirements for organic corn) while they were suspended. The NOP offered The Sixty a low settlement of $1,000 (which was paid in 2013).

Similarly, Maghill Ranch was found to have sold turkey starter (a livestock feed) as organic when it was not, and the NOP offered them a $3,000 civil penalty settlement (which was paid in 2013).

These enforcement actions revealed that the NOP may be more inclined to let violators squeak by with a nominal fine.

One of the primary jobs of the NOP is to enforce the organic regulations. Unfortunately enforcement actions taken against certifiers and certified operations are done with little transparency, which squanders any real deterrent value that fines and suspensions handed out by the NOP might have. We requested information on all enforcement actions undertaken by the NOP from September 2014 through the end of 2015, including the names of certificate holders targeted for enforcement actions, the nature of the violations in question, the total fines levied per enforcement action.

The NOP enforcement process fails to deter fraud and uphold organic integrity because the NOP does not make its enforcement actions public and wrongdoers are let off with very light punishments. We requested all records associated with Diamond D Organics, an operation that was known to have had their certificate suspended.

What we found: The USDA sent 119 heavily redacted and incomplete pages of records. From what we could piece together, the NOP took over four years to conclude an investigation into the sale of hay using a fraudulent certificate after receiving multiple complaints. No one was punished. Additional records are being sent from the USDA, as of August 2016. The USDA continues to, apparently, bend over backwards to protect the reputations of organizations which have committed fraud in the organic industry.

In 2013, the NOP unilaterally announced a radical change in the process for reapproving materials on the National List, which is a list of synthetic and non-organic substances that have special exemptions to allow for their use in organics. Previously, materials would be removed from the National List after five years unless the NOSB voted by 2/3rds majority to retain them. The USDA changed this, without allowing for public comments or any feedback from the organic community, to require a 2/3rds majority for removal. The practical result is that very few, if any, materials would ever come off the list (especially if corporate lobbyists wanted them to remain). Because this policy change was done in secret, we submitted this request in an effort to bring the process behind this change to light. Currently, a group of 15 non-profit organizations are suing the USDA over this issue.

What we found: The FOIA provided no meaningful information to discern the process behind the radical changes in the Sunset process. It is worth noting that phone records were not provided so it is hard to know what might have been discussed in this undocumented record.

In 2012, Deputy Administrator of the NOP Miles McEvoy and Matthew Michael, head of enforcement at the NOP, traveled to Texas and New Mexico to visit certified organic dairies that had come under criticism. These dairies are industrial in scale, and in our opinion should never have been certified organic. It is our contention that the management practices on these facilities are do not comply with organic regulations and the number of them are the subjects of formal legal complaints we have filed with the USDA. The dairies in question remained certified after the NOP visit. Our request seeks to determine how and why they arrived at their conclusion that these dairies were in compliance with federal organic law.

What we found: An initial release of 12 pages was incomplete and heavily redacted using primarily the FOIA exemption that protects confidential business information. In early 2016, with the USDA having missed the legal deadline by over three years, we filed suit. Additional documents were subsequently sent to us starting in the summer of 2016. We have received 4,000 pages to date and are in the process of reviewing them.

In 2008, we visited Shamrock Dairy, a 16,000 cow operation located in the desert south of Phoenix, Arizona. Based on what we observed, we filed a formal complaint that same year alleging that Shamrock was not in compliance with the organic regulations. After three years, in 2011, the NOP, and the certifier, QAI, finally concluded their investigations and found that Shamrock was out of compliance and ordered their organic certificate revoked. Shamrock appealed the revocation. In 2012 we submitted a FOIA request for all records in this case. Through 2015 the USDA refused to release any information citing an on-going investigation, even though we had letters from them stating that the investigation had ended in 2011. Finally in 2016 after we filed suit in federal court, the USDA began releasing records. We are currently reviewing these records. Their response is still incomplete and we are still awaiting additional documents.

What we found: From our partial review, we have determined that it is clear that Shamrock was managing about 1000 head of “organic” cattle on a mere 120 acres of pasture on the desert lands south of Phoenix (they were harvesting some of this 120 acres of pasture for stored feed). Documents obtained by certifier QAI clearly illustrate long periods of time where the cattle were confined because the limited pasture was being irrigated, replanted or harvested. The USDA’s response is still incomplete and we are awaiting additional documents detailing the disposition of this case.